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Summary

The claimant had been in receipt of IS since 1998. Between August 2004 and August 2009 she worked for a taxi company, working variable weekly hours between zero and a peak of 54.25. In April 2010, the DWP carried out a supersession and terminated entitlement on the basis that the claimant had started remunerative work in 2004, and also decided that there was a recoverable overpayment for failure to disclose that change. The First-tier Tribunal dismissed the claimant’s appeal against both decisions.

Judge Ward allowed the claimant’s further appeal only to the extent that the tribunal had erred in the calculation of the recoverable overpayment. Regarding whether the claimant was in ‘remunerative work’ (and so not entitled to IS), the judge applied regulation 5 of the Income Support (General) Regulations 1987, SI No.1967. Under subparagraph (2)(b)(ii), where hours of work fluctuate and there is no recognisable cycle of work, the number of hours is determined either over the period of five weeks before the date of the supersession, or ‘such other length of time’ as may enable a more accurate assessment. On the facts of this case (which included that the claimant had not worked at all in the five weeks), the judge held that the most accurate approach was to carry out the calculation over the whole period leading up to the supersession (paragraph 21). The averaging process fell to be carried out simply including the weeks where there was a nil or small amount of work in the general calculation (paragraph 24). Applying regulation 5 over the whole period, the claimant worked an average of 20.88 hours a week, meaning that she was to be treated as engaged in remunerative work throughout the whole period (paragraph 25).

However, the overpayment was incorrectly calculated as being simply the whole amount of IS paid to the claimant since she started work. Under regulation 13(1)(b) of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988, SI No.664, deductions had to be made for any IS not payable under the original award but which ‘should have been determined to be payable’ on the basis of the claim had the claimant’s misrepresentation or non-disclosure been remedied. The judge held that that ‘directs one to entitlement on the basis that any misrepresentation or failure to disclose had been remedied before an award was made: in other words, that the claimant had accurately told the income support section, week by week, the hours that she had worked’ (paragraph 44). In that context, that would have resulted in regular supersessions, in which the five-week period referred to in regulation 5 would have applied. That would have meant that there would have been some five-week periods in which the claimant would have been working for less than 16 hours a week on average. In those periods, the claimant would not have been disentitled from IS, and her correct entitlement in those periods fell to be deducted from the overpayment (paragraphs 44–45).

Comment from CPAG

There is similar provision to regulation 5(2)(ii) at regulation 51(2)(b)(ii) of the Jobseeker’s Allowance Regulations 1996, so a similar approach is indicated regarding jobseeker's allowance.

Summary

Although the First-tier Tribunal scored the claimant seven points for the daily living component, that was not enough to give rise to entitlement. The tribunal did not award the claimant any points under Activity 6 for dressing and undressing, despite the fact that the claimant said on the claim form that she needed help from another person due to pain and discomfort in her joints and dizziness when she bent down. The tribunal noted that, at the tribunal hearing, the claimant said that she wore ‘easy to wear’ clothes, and the tribunal observed that she was able to take off her cardigan unaided.

Judge Jacobs allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in its approach to Activity 6. In particular, that was because it failed to approach it taking into account the principles set out by the judge (at paragraph 19): (1) the test is a general one of ability to dress, ‘not whether they can dress in any particular types of clothing’; (2) the tribunal ‘should not limit itself to the minimum clothing necessary for warmth and decency’; (3) that did not mean that the claimant is entitled to specify the type of clothing by way of preference or requirement; (4) the tribunal must not identify the clothing in a way that defeats the purpose of the test by defining away the limiting effects of the claimant’s disability; (5) but the tribunal can consider ‘reasonable and practical alternatives’ – for example, the ability to put on a cardigan rather than a pullover; (6) the correct balance can be struck by concentrating on the functions that underlie the activity; thus, ‘it may be appropriate in an overall assessment…to disregard a limitation with a particular function. But it would not be appropriate to disregard a limitation with so many functions that the claimant could only wear loose, elasticated clothes with no fastening.’ By way of further illustration, the judge said that a claimant who has difficulty with handling small objects cannot rely on problems in fastening a particular dress with many buttons; but a claimant who cannot manage buttons or laces cannot be tested by reference to her/his ability to dress in clothes fastened by Velcro (paragraphs 14–15).

The judge also commented on the meaning of the wording in regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, SI No.377. That provides that, where a claimant’s ‘ability to carry out an activity is assessed’, s/he is to be assessed ‘as satisfying a descriptor’ only if s/he ‘can do so’ safely, to an acceptable standard, repeatedly and within a reasonable time period. The judge held that the words ‘can do so’ referred to simply to the claimant’s ability to ‘carry out an activity’, not to whether s/he is assessed as ‘satisfying a descriptor’. So, for example, what mattered was whether the claimant could carry out the activity safely, not whether that could be applied to a particular descriptor (paragraphs 22–24).

Summary

The claimant suffered from a genetic disorder (confirmed by medical evidence) that causes strong body odour, and associated mental health problems including anxiety, depression and paranoia. In her appeal against her disability living allowance (DLA) decision, the claimant had told the tribunal by letter that she found it stressful to be around other people, because of her body odour and the often hostile reaction this provoked in others. She said she could not attend a hearing because of her condition and asked whether the tribunal could telephone her on the day of the hearing if it had any questions. The tribunal decided to proceed in the claimant’s absence, and did not telephone her, as it considered it had sufficient information to make an informed decision. It awarded only the lower rate of the mobility component.

Allowing the claimant’s further appeal, Judge Knowles QC observed that it was no understatement to describe the effect of the condition on the claimant as ‘devastating’, and that the claimant’s account of the impact of the condition on her life made for ‘poignant reading’ (paragraph 7). As submitted by the Secretary of State, the tribunal erred in failing to consider the guidelines set out in the Senior President of Tribunals Practice Direction of 30 October 2008 on Child, Vulnerable Adult and Sensitive Witnesses (the ‘Practice Direction’). There, a sensitive witness was defined as, ‘an adult witness where the quality of the evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case.’ Where such a witness was required to give evidence to enable a fair hearing, the tribunal should consider use of means such as a telephone or video link. The judge agreed that dealing with the case fairly and justly required attention to that, as there was no doubt that the claimant was a sensitive witness (paragraphs 15–16).

The tribunal had made explicit reference to rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685, – ie, that which permits hearings in a party’s absence. But, erroneously, it made no reference to the overriding objective in rule 2 to deal with a case ‘fairly and justly’, and in particular to rule 2(2)(c) on ‘ensuring, so far as practicable, that the parties are able to participate fully in the proceedings’. Proper attention to that would have suggested that the tribunal considered hearing from the claimant on the telephone, as she had requested, and, indeed, consideration of the Practice Direction. The tribunal had also erred in simply failing to ask itself whether it might obtain further useful evidence from the claimant by telephoning her (paragraphs 22–24). Directing that the appeal should be reheard by a new tribunal, the judge directed that the claimant should be given the opportunity to attend the new hearing by telephone, in accordance with the Practice Direction (paragraph 33).

Comment from CPAG

This is another in a recent line of decisions reminding tribunals of the requirement to allow parties to participate in hearings, as part of the overriding objective of dealing with cases fairly and justly – see also DT v SSWP (DLA) [2015] UKUT 390 (AAC) and CH v SSWP (ESA) [2015] UKUT 187 (AAC).

Decision in brief

Claimant overpaid due to going abroad, temporary absence rules did not apply and he did not inform the local authority – but his wife and four children remained in the property – tribunal did not correctly apply regulation 104(1) regarding the calculation of the overpayment – that requires the deduction of any housing benefit which should have been determined to be payable to the person overpaid, ‘or their partner’ (ie, in this case the claimant’s wife) – it was immaterial here that only one person can be the housing benefit claimant – proper approach is to ‘see what the true circumstances of a claim were had the claimant submitted a valid claim for benefit and to calculate benefit due to either the claimant or his partner on that basis’

Decision in brief

Claimant who because of anxiety requires help with reassurance and encouragement – does not satisfy the descriptor as it ‘deals with navigation and excludes dealing with other difficulties that may be encountered along the way’ – ‘following’ the route is the subject of the descriptor – that is the natural meaning of the words in the descriptor, and is in contrast to some others in Activity 1, which deal with inability to embark on or complete a journey, but not following its route

Note

See the contrasting RC v SSWP, and the article in Bulletin 249, p4.

Decision in brief

Claimant who cannot leave the house without another person satisfies the descriptors – although other descriptors in Activity 1 specify a mental health element, no such requirement in 1(d or (f) – not limited to ability to navigate when on the journey – ‘extraordinary’ if someone who was permanently housebound scored fewer points than someone sometimes able to go out – ‘cannot’ is the significant word in the descriptors, not ‘follow’

Note from CPAG

See the contrasting DA v SSWP, and the article in Bulletin 249, p4.

Decision in brief

The time limit applies to the supervision/ prompting/assistance, not to the therapy (paragraph 25) – no rule that states that because a claimant’s problems create limits within one descriptor, they cannot also be assessed as creating limits within another descriptor – PE v SSWP [2015] UKUT 309 (AAC) approved (paragraph 28)

Note from CPAG

Judge Williams, who made this decision, took the same approach to descriptor 3(f), a case involving kidney dialysis, in HH v SSWP [2015] UKUT 558 (AAC) (16 October 2015) (file number CPIP/1290/2015). There he also observed, on the facts, that the claimant was able to manage his dialysis without supervision, prompting or assistance, in which case the descriptor did not apply.

Decision in brief

Phrase means ‘cannot either chew and swallow food or swallow drink’ – specifically, ‘cannot chew or swallow food’ means ‘cannot either chew or swallow food’ or, put another way, ‘cannot chew and swallow food’ – so a person who cannot chew food but who can swallow thin soup and drink liquids will satisfy a descriptor

Decision in brief

Relevant provision is regulation 31 of the Jobseeker’s Allowance Regulations 1996, SI No.207 – does not mean that claimants who received jobseeker's allowance were wrongly paid – instead, where the proposed agreement is not signed, it must be referred to a decision maker for consideration as to whether it is reasonable

Summary

The claimant, a Romanian national, worked in Ireland as a self-employed plasterer for about four years. Following a downturn in work, he registered as unemployed and applied for an Irish jobseeker’s allowance. He was refused on the basis that he did not have a right to reside and, in particular, that only a former employee (and not a self-employed person) could retain a right to reside as a worker while unemployed.

The Court of Justice of the European Union held that on a correct construction of the ‘residence’ Directive, 2004/38/EC, a self-employed person in these circumstances does retain worker status. The relevant provision of the Directive was at Article 7(3)(b). That provides that a union citizen who ‘is no longer a worker or self-employed person’ retains worker status where s/he is in duly recorded involuntary unemployment after having been ‘employed for more than one year’ and has registered unemployed. The court first confirmed that ‘involuntary unemployment’ referred both to loss of employment (eg, following dismissal) and where work has ‘ceased due to an absence of work for reasons beyond the control of the person concerned, such as an economic recession’ (paragraph 31).

Further, Article 7(3)(b) could apply both to former employees and self-employed persons. That was on the basis both of the wording of the Article and the objectives of the Directive (paragraphs 36–41). In particular, restricting 7(3)(b) to former employees would ‘introduce an unjustified difference’ between the former employed and self-employed, given the objective, ‘which is to safeguard, by the retention of the status of worker, the right of residence of persons who have ceased their occupational activity because of an absence of work due to circumstances beyond their control’ (paragraph 42).

Summary

This decision of the Court of Justice of the European Union concerns the right to reside of an Algerian national married to someone with dual British/Spanish nationality. The appellant’s wife was Spanish. She moved to the UK to study, then worked full time. She became a British citizen while retaining her Spanish nationality. She met and later married the appellant. His application for a residence card was refused on the basis that he did not have rights as the family member of a European Economic Area (EEA) national, because when his wife acquired British nationality, she could no longer count as an ‘EEA national’ under the so-called ‘residence’ Directive, 2004/38/EC.

The court confirmed that where a citizen of the European Union (EU) has exercised her/his freedom of movement by moving to another member state, has then acquired the nationality of that member state while retaining her/his nationality of origin, and has later married a ‘third-country’ national, that third-country national does not have the right to reside as a family member of that person on the basis of Directive 2004/38/EC. However, that third-country national was nevertheless entitled to the right to reside as a family member of the EU citizen. This was on the basis of rights under Article 21(1) of the Treaty on the Functioning of the European Union (TFEU). That right to reside must not be more restricted than the family member rights for a third-country national that Directive 2004/38/EC does provide for.

Summary

This judicial review decision of the High Court holds that changes made to the PIP mobility descriptors made to exclude ‘psychological distress’ as a reason for inability to plan or follow the route of a journey, effective from 16 March 2017, are unlawful. Mr Justice Mostyn held that the changes to the Social Security (Personal Independence Payment) Regulations 2013, SI No.377 (the ‘2013 regulations’), specifically regarding PIP descriptors 1(c), (d) and (f), made by the Social Security (Personal Independence Payment) (Amendment) Regulations 2017, SI No.194 (‘the amending regulations’) constituted unlawful discrimination, and quashed the relevant part of the amending regulations (paragraph 64).

The judge noted that at no previous point, including in consultation about the 2013 regulations, had it been made clear that the government took the view that those with mobility problems caused by psychological distress had a lesser need than those with identical problems caused by some other reason (paragraphs 7–30). What the government now contended was the original legislative intent could not be deduced from the rules extant before the change, either on a literal or purposive construction (paragraphs 30–32). Further, that original policy intention was not based on empirical research or evidence, and was untenable (paragraphs 44–47).

The judge considered that the exclusion of psychological distress from the descriptors was ‘blatantly discriminatory against those with mental health impairments and cannot be justified’ (paragraph 59). The changes were in breach of Article 14 (read with Article 1 of Protocol 1 and Article 8) of the European Convention on Human Rights. The objective of the changes was ‘plainly’ to save money, and that was manifestly not sufficiently important to justify the discrimination. Further, the absence of empirical evidence meant that the changes were not rationally connected to the objective (paragraphs 44–48). Overall, the discrimination was ‘manifestly without reasonable foundation’ and therefore could not be justified (paragraph 59). Given all this, the judge also accepted that the changes were unlawful on the grounds of inadequate consultation, and ultra vires of the primary powers regarding PIP in the Welfare Reform Act 2012 (paragraphs 62–63).

Comment from CPAG

The Secretary of State abandoned an initial application for leave to appeal and has announced that the government will not challenge this decision.